[Introduced January 25, 2010; referred to the Committee on
Education.]

____________

A BILL to amend and reenact §18-8-1, §18-8-1a and §18-8-4 of the
Code of West Virginia, 1931, as amended, all relating to
compulsory school attendance; increasing the minimum age for
ending compulsory school attendance to age seventeen; and
reducing to five the number of days of unexcused absences at
which proceedings to enforce attendance begin.

Be it enacted by the Legislature of West Virginia:
That §18-8-1, §18-8-1a and §18-8-4 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; all to read
as follows:

ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.

§18-8-1. Commencement and termination of compulsory school
attendance; exemptions.

(a) Compulsory school attendance shall begin with the school
year in which the sixth birthday is reached prior to September 1, or upon enrolling in a publicly supported kindergarten program and
continue to the sixteenthseventeenth birthday. Exemption from the
foregoing requirements of compulsory public school attendance shall
be made on behalf of any child for the causes or conditions set
forth in this section. Each cause or condition set forth in this
section shall be subject to confirmation by the attendance
authority of the county.
(b) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to instruction in
a private, parochial or other approved school, are met. The
instruction shall be in a school approved by the county board and
for a time equal to the instructional term set forth in section
forty-five, article five of this chapter. In all private,
parochial or other schools approved pursuant to this subsection it
shall be the duty of the principal or other person in control, upon
the request of the county superintendent, to furnish to the county
board such information and records as may be required with respect
to attendance, instruction and progress of pupils enrolled between
the entrance age and sixteen years.
(c) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of either subdivision (1) of this subsection or
subdivision (2) of this subsection, both relating to home
instruction, are met.
(1) The instruction shall be in the home of the child or
children or at some other place approved by the county board and
for a time equal to the instructional term set forth in section
forty-five, article five of this chapter. If the request for home
instruction is denied by the county board, good and reasonable
justification for the denial shall be furnished in writing to the
applicant by the county board. The instruction shall be conducted
by a person or persons who, in the judgment of the county
superintendent and county board, are qualified to give instruction
in subjects required to be taught in public elementary schools in
the state. The person or persons providing the instruction, upon
request of the county superintendent, shall furnish to the county
board information and records as may be required, from time to
time, with respect to attendance, instruction and progress of
pupils enrolled between the entrance age and sixteen years
receiving the instruction. The state board shall develop
guidelines for the home schooling of special education students
including alternative assessment measures to assure that
satisfactory academic progress is achieved.
(2) The child meets the requirements set forth in this
subdivision: Provided, That the county superintendent may seek
from the circuit court of the county an order denying home
instruction of the child. The order may be granted upon a showing
of clear and convincing evidence that the child will suffer neglect
in the child's education or that there are other compelling reasons to deny home instruction.
(A) Annually, the person or persons providing home instruction
shall present to the county superintendent or county board a notice
of intent to provide home instruction and the name, address, age
and grade level of any child of compulsory school age to be
instructed: Provided, That if a child is enrolled in a public
school, notice of intent to provide home instruction shall be given
at least two weeks prior to withdrawing such child from public
school;
(B) The person or persons providing home instruction shall
submit satisfactory evidence of a high school diploma or
equivalent;
(C) The person or persons providing home instruction shall
outline a plan of instruction for the ensuing school year; and
(D) On or before June 30 of each year the person or persons
providing home instruction shall obtain an academic assessment of
the child for the previous school year and submit the results to
the county superintendent. When the academic assessment takes
place outside of a public school, the parent or legal guardian
shall pay the cost. The requirement of an academic assessment
shall be satisfied in one of the following ways:
(i) The child receiving home instruction takes a nationally
normed standardized achievement test to be administered under
standardized conditions as set forth by the published instructions
of the selected test in the subjects of reading, language, mathematics, science and social studies: Provided, That in no
event may the child's parent or legal guardian administer the test.
The publication date of the chosen test shall not be more than ten
years from the date of the administration of the test. The child
shall be considered to have made acceptable progress when the mean
of the child's test results in the required subject areas for any
single year meets or exceeds the fiftieth percentile or, if below
the fiftieth percentile, shows improvement from the previous year's
results;
(ii) The child participates in the testing program currently
in use in the state's public schools. The test shall be
administered to the child at a public school in the county of
residence. Determination of acceptable progress will be based on
current guidelines of the state testing program;
(iii) The county superintendent is provided with a written
narrative indicating that a portfolio of samples of the child's
work has been reviewed and that the child's academic progress for
the year is in accordance with the child's abilities. If the
narrative indicates that the child's academic progress for the year
is in accordance with the child's abilities, the child shall be
considered to have made acceptable progress. This narrative shall
be prepared by a certified teacher whose certification number shall
be provided. The narrative shall include a statement about the
child's progress in the areas of reading, language, mathematics,
science and social studies and shall note any areas which, in the professional opinion of the reviewer, show need for improvement or
remediation; or
(iv) The child completes an alternative academic assessment of
proficiency that is mutually agreed upon by the parent or legal
guardian and the county superintendent. Criteria for acceptable
progress shall be mutually agreed upon by the same parties; and
(E) When the annual assessment fails to show acceptable
progress as defined under the appropriate assessment option set
forth in paragraph (D) of this subdivision, the person or persons
providing home instruction shall initiate a remedial program to
foster acceptable progress and the county board shall notify the
parents or legal guardian of the child, in writing, of the services
available to assist in the assessment of the child's eligibility
for special education services: Provided, That the identification
of a disability shall not preclude the continuation of home
schooling. In the event that the child does not achieve acceptable
progress as defined under the appropriate assessment option set
forth in paragraph (D) of this subdivision for a second consecutive
year, the person or persons providing instruction shall submit to
the county superintendent additional evidence that appropriate
instruction is being provided.
(3) This subdivision applies to both home instruction
exemptions set forth in subdivisions (1) and (2) of this
subsection. The county superintendent or a designee shall offer
such assistance, including textbooks, other teaching materials and available resources, as may assist the person or persons providing
home instruction subject to their availability. Any child
receiving home instruction may upon approval of the county board
exercise the option to attend any class offered by the county board
as the person or persons providing home instruction may consider
appropriate subject to normal registration and attendance
requirements.
(d) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to physical or
mental incapacity, are met. Physical or mental incapacity consists
of incapacity for school attendance and the performance of school
work. In all cases of prolonged absence from school due to
incapacity of the child to attend, the written statement of a
licensed physician or authorized school nurse shall be required
under the provisions of this article: Provided, That in all cases,
incapacity shall be narrowly defined and in no case shall the
provisions of this article allow for the exclusion of the mentally,
physically, emotionally or behaviorally handicapped child otherwise
entitled to a free appropriate education.
(e) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if conditions rendering school attendance impossible or hazardous
to the life, health or safety of the child exist.
(f) A child shall be exempt from the compulsory school attendance requirement set forth in subsection (a) of this section
upon regular graduation from a standard senior high school.
(g) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the child is granted a work permit pursuant to this subsection.
The county superintendent may, after due investigation, grant work
permits to youths under sixteen years of age, subject to state and
federal labor laws and regulations: Provided, That a work permit
may not be granted on behalf of any youth who has not completed the
eighth grade of school.
(h) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if a serious illness or death in the immediate family of the pupil
has occurred. It is expected that the county attendance director
will ascertain the facts in all cases of such absences about which
information is inadequate and report the facts to the county
superintendent.
(i) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to destitution in
the home, are met. Exemption based on a condition of extreme
destitution in the home may be granted only upon the written
recommendation of the county attendance director to the county
superintendent following careful investigation of the case. A copy
of the report confirming the condition and school exemption shall be placed with the county director of public assistance. This
enactment contemplates every reasonable effort that may properly be
taken on the part of both school and public assistance authorities
for the relief of home conditions officially recognized as being so
destitute as to deprive children of the privilege of school
attendance. Exemption for this cause shall not be allowed when the
destitution is relieved through public or private means.
(j) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to church
ordinances and observances of regular church ordinances, are met.
The county board may approve exemption for religious instruction
upon written request of the person having legal or actual charge of
a child or children: Provided, That the exemption shall be subject
to the rules prescribed by the county superintendent and approved
by the county board.
(k) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to alternative
private, parochial, church or religious school instruction, are
met. Exemption shall be made for any child attending any private
school, parochial school, church school, school operated by a
religious order or other nonpublic school which elects to comply
with the provisions of article twenty-eight of this chapter.
(l) The completion of the eighth grade shall not exempt any child under sixteen years of age from the compulsory attendance
provision of this article.

§18-8-1a. Compulsory school attendance; public school entrance
requirements; exceptions thereto.

Notwithstanding the provisions of section one of this article,
compulsory school attendance shall begin with the school year in
which the sixth birthday is reached prior to September one of such
year or upon enrolling in a publicly supported kindergarten program
and continue to the sixteenthseventeenth birthday or for as long
as the student shall continue to be enrolled in a school system
after the sixteenthseventeenth birthday: Provided, That a child
may be removed from such kindergarten program when the principal,
teacher and parent or guardian concur that the best interest of the
child would not be served by requiring further attendance:
Provided, however, That the principal shall make the final
determination with regard to compulsory school attendance in a
publicly supported kindergarten program: Provided further, That
the compulsory school attendance provision of this article shall be
enforced against a person eighteen years of age or older for as
long as the person continues to be enrolled in a school system, and
shall not be enforced against the parent, guardian, or custodian of
such person.
Attendance at a state-approved or Montessori kindergarten, as
provided in section eighteen, article five of this chapter, shall be deemed school attendance for purposes of this section. Prior to
entrance into the first grade in accordance with section five,
article two of this chapter, each child must have either: (1)
Successfully completed such publicly or privately supported, state-
approved kindergarten program or Montessori kindergarten program;
or (2) successfully completed an entrance test of basic readiness
skills approved by the county in which the school is located:
Provided, That such test be administered in lieu of kindergarten
attendance only under extraordinary circumstances to be determined
by the board. Notwithstanding the provisions of this section and
of section five, article two of this chapter and section eighteen,
article five of this chapter, a county board may provide for
advanced entrance or placement under policies adopted by said board
for any child who has demonstrated sufficient mental and physical
competency for such entrance or placement. Nothing herein shall
prevent a student from another state from enrolling in a public
school in West Virginia in such grade as the student was enrolled
at the school from which the student transferred.

(a) The county attendance director and the assistants shall
diligently promote regular school attendance. They shall ascertain
reasons for inexcusable absences from school of pupils of
compulsory school age and students who remain enrolled beyond the
sixteenth birthday as defined under this article and shall take such steps as are, in their discretion, best calculated to correct
attitudes of parents and pupils which result in absences from
school even though not clearly in violation of law.
(b) In the case of five consecutive or ten total unexcused
absences of a child during a school year, the attendance director
or assistant shall serve written notice to the parent, guardian or
custodian of such child that the attendance of such child at school
is required and that within ten days of receipt of the notice the
parent, guardian or custodian, accompanied by the child, shall
report in person to the school the child attends for a conference
with the principal or other designated representative of the school
in order to discuss and correct the circumstances causing the
inexcusable absences of the child; and if the parent, guardian or
custodian does not comply with the provisions of this article, then
the attendance director or assistant shall make complaint against
the parent, guardian or custodian before a magistrate of the
county. If it appears from the complaint that there is probable
cause to believe that an offense has been committed and that the
accused has committed it, a summons or a warrant for the arrest of
the accused shall issue to any officer authorized by law to serve
the summons or to arrest persons charged with offenses against the
state. More than one parent, guardian or custodian may be charged
in a complaint. Initial service of a summons or warrant issued
pursuant to the provisions of this section shall be attempted
within ten calendar days of receipt of the summons or warrant and subsequent attempts at service shall continue until the summons or
warrant is executed or until the end of the school term during
which the complaint is made, whichever is later.
(c) The magistrate court clerk, or the clerk of the circuit
court performing the duties of the magistrate court as authorized
in section eight, article one, chapter fifty of this code, shall
assign the case to a magistrate within ten days of execution of the
summons or warrant. The hearing shall be held within twenty days
of the assignment to the magistrate, subject to lawful continuance.
The magistrate shall provide to the accused at least ten days'
advance notice of the date, time and place of the hearing.
(d) When any doubt exists as to the age of a child absent from
school, the attendance director shall have authority to require a
properly attested birth certificate or an affidavit from the
parent, guardian or custodian of such child, stating age of the
child. The county attendance director or assistant shall, in the
performance of his or her duties, have authority to take without
warrant any child absent from school in violation of the provisions
of this article and to place such child in the school in which such
child is or should be enrolled.
(e) The county attendance director shall devote such time as
is required by section three of this article to the duties of
attendance director in accordance with this section during the
instructional term and at such other times as the duties of an
attendance director are required. All attendance directors hired for more than two hundred days may be assigned other duties
determined by the superintendent during the period in excess of two
hundred days. The county attendance director shall be responsible
under direction of the county superintendent for the efficient
administration of school attendance in the county.
(f) In addition to those duties directly relating to the
administration of attendance, the county attendance director and
assistant directors shall also perform the following duties:
(1) Assist in directing the taking of the school census to see
that it is taken at the time and in the manner provided by law;
(2) Confer with principals and teachers on the comparison of
school census and enrollment for the detection of possible
nonenrollees;
(3) Cooperate with existing state and federal agencies charged
with enforcement of child labor laws;
(4) Prepare a report for submission by the county
superintendent to the State Superintendent of Schools on school
attendance, at such times and in such detail as may be required.
The state board shall promulgate a legislative rule pursuant to
article three-b, chapter twenty-nine-a of this code that sets forth
student absences that shall be excluded for accountability
purposes. The absences that shall be excluded by the rule shall
include, but not be limited to, excused student absences, students
not in attendance due to disciplinary measures and absent students
for whom the attendance director has pursued judicial remedies to compel attendance to the extent of his or her authority. The
attendance director shall file with the county superintendent and
county board of education at the close of each month a report
showing activities of the school attendance office and the status
of attendance in the county at the time;
(5) Promote attendance in the county by the compilation of
data for schools and by furnishing suggestions and recommendations
for publication through school bulletins and the press, or in such
manner as the county superintendent may direct;
(6) Participate in school teachers' conferences with parents
and students;
(7) Assist in such other ways as the county superintendent may
direct for improving school attendance;
(8) Make home visits of students who have excessive unexcused
absences, as provided above, or if requested by the chief
administrator, principal or assistant principal; and
(9) Serve as the liaison for homeless children and youth.

NOTE: The purpose of this bill is to increase the minimum age
for ending compulsory school attendance from age sixteen to age
seventeen and to reduce from ten to five the number of days of
unexcused absences at which proceeding to enforce attendance begin.
This is an interim bill recommended by Education Subcommittee C.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.